Obama Administration Clarifies Medical-Marijuana Stance -- Sort Of; Reaffirms Lack of Interest in Busting Patients, but Warns of Possible Consequences for Commercial Activity
The Obama Administration has little interest in prosecuting medical-marijuana patients or their caregivers, states a letter by Deputy U.S. Attorney General James Cole.
The letter appears to be the awaited "clarification" by the Administration promised earlier this month by Attorney General Eric Holder. And, as we predicted last week, it's about as clear as bongwater.
In part, the letter states:
...it is likely not an efficient use of federal resources to focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen ... and their caregivers.
We'll link to the letter when the Department of Justice sends it out
officially; [UPDATE: -- See below for letter] meantime, we're pulling excerpts from an article published this evening in the Star-Ledger in New Jersey.
The paper reports that the letter also states:
There has, however, been an increase in the scope of commercial cultivation, sale, distribution, and use of marijuana for purported medical purposes,'' according to the letter. "For example, within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple, large-scale, privately operated industrial marijuana cultivation centers. Some of these planned facilities have revenue projections of millions of dollars based on the planned cultivation of tens of thousands of cannabis plants.''
[The Ogden Memo] never intended to shield such activities from federal law enforcement and prosecution, even when these activities purport to comply with state law...
The article's opener says, "State medical marijuana programs and the people who work for them are not likely to run afoul of federal law if they keep their operations small and controlled..."
It doesn't look like Cole's new letter explicitly states that state workers have some sort of amnesty from federal prosecution. On the other hand, it doesn't state that Arizona Department of Health Services employees are at risk of getting busted, either. No doubt, Obama doesn't want to go down in history as the guy who put DHS Director Will Humble behind bars simply for going along with the wishes of Arizona voters.
It seems unlikely, though, that the clarification will convince Governor Jan Brewer and state Attorney General Tom Horne that they must withdraw their attack on the voter-approved Arizona Medical Marijuana Act. The state leaders filed a declaratory judgment in federal court last month after Arizona U.S. Attorney Dennis Burke's May 2 letter about Arizona's program, and they also directed the Department of Health Services to reject applications for marijuana dispensaries.
As New Times revealed earlier this month, Horne had discussed the possibility of filing a declaratory judgment during a January meeting with the new law's chief opponent, Carolyn Short of Keep AZ Drug Free.
UPDATE: Other news outlets, some with the copy of the Cole letter that government officials have yet to send us, are taking a less optimistic viewpoint than we did with this post:
the420Times.com: Obama Administration Backtracks From "Ogden Memo"
(We'll just take a second to note another change we made to this blog post: Although the Star-Ledger reports that the Cole letter is addressed to every state's attorney general, the copy of the letter republished by these sites doesn't seem to be addressed that way. There is a cc to the Director of the Executive Office of United States Attorneys, so it seems as though every U.S. Attorney should get it.)
June 29, 2011
MEMORANDUM FOR UNITED STATES ATTORNEYS
FROM: James M. Cole Deputy Attorney General
SUBJECT: Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use
Over the last several months some of you have requested the Department's assistance in responding to inquiries from State and local governments seeking guidance about the Department's position on enforcement of the Controlled Substances Act (CSA) in jurisdictions that have under consideration, or have implemented, legislation that would sanction and regulate the commercial cultivation and distribution of marijuana purportedly for medical use. Some of these jurisdictions have considered approving the cultivation of large quantities of marijuana, or broadening the regulation and taxation of the substance. You may have seen letters responding to these inquiries by several United States Attorneys. Those letters are entirely consistent with the October 2009 memorandum issued by Deputy Attorney General David Ogden to federal prosecutors in States that have enacted laws authorizing the medical use of marijuana (the "Ogden Memo").
The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large scale criminal enterprises, gangs, and cartels. The Ogden Memorandum provides guidance to you in deploying your resources to enforce the CSA as part of the exercise of the broad discretion you are given to address federal criminal matters within your districts.
A number of states have enacted some form of legislation relating to the medical use of marijuana. Accordingly,the Ogden Memo reiterated to you that prosecution of significant traffickers of illegal drugs, including marijuana, remains a core priority, but advised that it is likely not an efficient use of federal resources to focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or their caregivers. The term "caregiver" as used in the memorandum meant just that: individuals providing care to individuals with cancer or other serious illnesses, not commercial operations cultivating, selling or distributing marijuana.
The Department's view of the efficient use of limited federal resources as articulated in the Ogden Memorandum has not changed. There has, however, been an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes. For example, within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately-operated industrial marijuana cultivation centers. Some of these planned facilities have revenue projections of millions of dollars based on the planned cultivation of tens of thousands of cannabis plants.
The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA. Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financial laws.
The Department of Justice is tasked with enforcing existing federal criminal laws in all states, and enforcement of the CSA has long been and remains a core priority.
cc: Lanny A. Breuer Assistant Attorney General, Criminal Division
B. Todd Jones United States Attorney District of Minnesota Chair, AGAC
Michele M. Leonhart Administrator Drug Enforcement Administration
H. Marshall Jarrett Director Executive Office for United States Attorneys
Kevin L. Perkins Assistant Director Criminal Investigative Division Federal Bureau of Investigations
This line seems to mean business: "Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law."
To some extent, voters in Arizona already knew this when they approved Prop 203. But exactly who are those "who knowingly facilitate such activities?" Does Obama's legal enforcers mean Will Humble and his employees?
Another sentence seems to indicate that Arizona could have a robust medical marijuana program, if Governor Brewer supported it:
"Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution."
That seems to indicate that the feds wouldn't necessarily target every dispensary, if dispensaries ever go online. Yes, the risk would still be present for dispensary owners and large-scale growers, but the risk would be minimized by the lack of federal resources to go after these people. And Burke, it seems, has the discretion to either support Arizona voters by not prosecuting the people who are simply carrying out what is now state law.
Governor Brewer could still decide to take a chance on Arizona voters instead of putting money on the resource-strapped feds.